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Court of AppealAllowedCivil Application No. 8 of 2019· [2021] KECA 778 (KLR)

Harun Theuri Ngunyi v Kinangop Division Land Disputes Tribunal

Court of Appeal
19 March 2021
1,389 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal struck out a notice of appeal filed 25 days late without permission, ending that appeal entirely.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal (Nambuye, Asike-Makhandia and Kantai, JJ.A.) on a notice of motion dated 1st February 2019 brought under Rules 42, 43, 75(2) & (6) and 84 of the Court of Appeal Rules, 2010, seeking to strike out the Respondent's notice of appeal dated 2nd January 2019 and filed on 3rd January 2019. The intended appeal lay from a decision of the Environment and Land Court (Ohungo, J.) delivered on 7th December 2018 in a judicial review matter. The application was unopposed, but the Court held it was still obliged to render a merit decision. The Court found that the notice of appeal was lodged twenty-five days after the decision, contrary to Rule 75(2) requiring lodging within fourteen days, and without leave. Relying on its established case law, including Patrick Kiruja Kithinji v. Victor Mugira Marete and Nicholas Kiptoo Arap Korir Salat v. IEBC, the Court held that timeliness goes to jurisdiction and that an appeal filed out of time without leave is a proper candidate for striking out. The Court also confirmed its own jurisdiction under Rule 84, finding the striking-out application was filed within the thirty-day window. Allowing the application with costs to the Applicant, the Court struck out the Respondent's notice of appeal, thereby terminating the intended appeal at its threshold.

Key legal issues

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01

Consequences of non-compliance with Rule 75(2) time requirement for lodging a notice of appeal

Holding

A notice of appeal lodged outside the fourteen-day period prescribed by Rule 75(2), without leave of the Court, is a proper candidate for striking out.

Reasoning

Rule 75(2) requires a notice of appeal to be lodged within fourteen days of the decision, read together with Rule 77(1) requiring service within seven days. Timeliness is fundamental because it goes to jurisdiction; the Court can only entertain appeals filed in time or out of time with leave. The impugned notice was lodged twenty-five days after delivery of the decision with no leave, so it falls for striking out.

p. 2
02

Compliance with the thirty-day limit under Rule 84 for striking-out applications

Holding

The Applicant's application, though filed on 4th March 2019, was within the thirty-day window in Rule 84 and the Court was properly seized of it.

Reasoning

Rule 84 requires an aggrieved party to apply to strike out within thirty days of service of the notice of appeal or record of appeal. Although the date of service was not disclosed in the supporting affidavit, the record showed the applicant was able to prepare, date and file the application in time, bringing it within the prescribed thirty days.

p. 2

Legal principles established

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  • Whether or not an appeal is filed on time is a fundamental issue as it goes to the jurisdiction of the Court; the Court only has jurisdiction over appeals filed within time or out of time with leave.
  • A notice of appeal filed out of time without leave of the Court is a proper candidate for striking out.
  • A notice of appeal is a primary document incapable of amendment; where defective it can only be struck out.

Court orders

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  1. 1.The Respondent's notice of appeal dated 2nd January, 2019 and filed on 3rd January, 2019 is struck out
  2. 2.Costs of the application to the Applicant
On appeal from
Environment and Land Court
Nakuru ELC JR Application No. 26 of 2018 (Formerly HC J.R. Application No. 50 of 2008)
Jurisdiction invoked
Rules 42, 43, 75(2) & (6) and 84 of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Harun Theuri Ngunyi v Kinangop Division Land Disputes Tribunal", Case Analysis (2021). Civil Application No. 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/778/eng@2021-03-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.